Opinion
39280.
DECIDED JANUARY 25, 1962.
Action for damages. Laurens Superior Court. Before Judge Ward.
R. M. Daley, Jones Douglas, Paul J. Jones, Jr., for plaintiff in error.
Thompson Briley, Joseph H. Briley, H. Dale Thompson, contra.
In accordance with the well-settled rule that ambiguous pleadings are to be construed most strongly against the pleader and that pleadings are to be construed in the light of their omissions as well as their averments, the failure of the plaintiff to allege facts as to what status he occupied on the defendant's property will be construed as an allegation that the plaintiff was a bare licensee or a trespasser. Cook v. Southern Ry. Co., 53 Ga. App. 723 ( 187 S.E. 274); Piggly Wiggly, Macon, Inc. v. Kelsey, 83 Ga. App. 526 ( 64 S.E.2d 201); Ricks v. Boatwright, 95 Ga. App. 267 ( 97 S.E.2d 635). The allegations of negligence failing to show a violation of any duty to the plaintiff as a bare licensee or as a trespasser ( Code § 105-402; Mandeville Mills v. Dale, 2 Ga. App. 607, 58 S.E. 1060), it was error to overrule the defendant's general demurrer.
Judgment reversed. Carlisle, P. J., and Custer, J., concur.
DECIDED JANUARY 25, 1962.
Roy H. Cherry, by his next friend, Pearl W. Cherry, filed suit for damages against Jack Curl seeking to recover for loss of an eye allegedly caused by a dart thrown by the defendant's eleven year old son. The pertinent parts of the petition are:
"3. That on the 27th day of January, 1961 at approximately 5:00 o'clock p. m. est., within the residence of Jack Curl the said Braddy Curl did negligently throw and strike Roy Wendell Cherry in the right eye with a sharp pointed throwing instrument known as a dart, causing Roy Wendell Cherry the complete and permanent loss of said eye.
"4. That Jack Curl was negligent in furnishing a potentially dangerous instrument to Braddy Curl an infant of tender age with knowledge that said infant lacked the maturity or judgment required for the safe use of such instrument.
"5. That said Jack Curl had or should have had knowledge that Braddy Curl being of such tender age was irresponsible, incompetent and unqualified to use this instrument with such care and diligence as not to injure other persons, and was therefore negligent in furnishing said dart to said Braddy Curl.
"6. That Roy Wendell Cherry entered the room wherein Braddy Curl was throwing said darts without notice or knowledge of the danger therein and was therefore without negligence or fault in the injury which he suffered."
The trial court overruled the defendant's general demurrer which ruling is here for review.